Monday, August 27, 2012

Regarding Mr. Miguna Miguna’s tribulations...

Press Release

Nairobi, 27 August 2012 

For avoidance of doubt, we wish to communicate to members of the public generally as follows, regarding Mr. Miguna Miguna and his self-inflicted tribulations, as he allegedly tries to popularize his book in different parts of the country.

Mr. Miguna is the man who has recently published unfriendly propaganda against the Prime Minister Raila Odinga. The propaganda is packaged in the guise of a book that claims to seek to make Kenya a just society. This package is however nothing but a bundle of offensive and defamatory invective against the Prime Minister. Mr. Miguna has himself stated publicly that the objective of this polemic is to derail the Hon. Prime Minister’s Presidential campaign.

We want to state categorically that the PM’s supporters have been strongly advised, via public communication from the ODM Secretariat, to respect Mr. Miguna’s rights and freedom, even if he abuses that freedom to defame the Prime Minister.

The Prime Minister occupies very key public office. He recognizes that citizens are entitled to genuinely interrogate his performance. But he also recognizes that there are those who will abuse freedom of expression to insult him and to hurt his good character. Such is the price of freedom and high office. The Prime Minister does not have to answer to everyone who makes wild claims against him. If he were to do this, he would spend all his active time answering back to wild claims, for there is no shortage of this from his detractors. That is why he has kept off the Miguna allegations.

In the event that anyone considers that there is substance in the wild allegations against the PM, there exist lawful and decent avenues of seeking redress, in public interest. However, since there is no substance, nobody is exploring use of such avenues. The PM and this Secretariat have therefore been content to allow Mr. Miguna to enjoy his freedom of expression, unfettered. We trust that genuine supporters of the PM and ODM have heeded this advice and are keeping away from Miguna and his frolics.

There have been pleas from strange quarters on “the need for the PM to speak out” against the apparent harassment that Mr. Miguna is coming up against out there. Mr. Miguna, his sponsors and those who seem to be harassing him are playing to a choreographed and orchestrated script. As has been stated by the ODM Secretariat, this is a sinister, offensive and lowly ploy. It is a wicked stratagem that seeks to depict the Prime Minister as someone who does not respect other people’s rights and freedoms. It is clear that it is sponsors of this ploy who are shouting loudest about this matter. It is well within their capacity to end the orchestrated “harassment” against their man.


B.O. Muluka

For the Raila Odinga for President Secretariat

Monday, August 20, 2012

Looks like Tony Gachoka has an axe to grind


They call him a “political activist”. But the term is a meaningless tautology. It’s like calling someone a “widow woman”. That’s because a “widow” is a “woman”, I would rather they called him a “political consultant” or even a “gun for hire”.
I am talking about former government functionary Tony Gachoka.
Mr Gachoka, the estranged aide to Prime Minister Raila Odinga, has suddenly “found his conscience”.
He now claims — nearly four years after the fact — to possess evidence of Mr Odinga’s culpability in the 2008 post-election violence.
Like Miguna Miguna — another estranged Odinga aide — Mr Gachoka wants to “unburden” himself at the International Criminal Court.
Why now? Deductive reasoning shows that Mr Gachoka isn’t acting alone. I’ll tell you why.
But let’s first dispose with some preliminary matters. It seems that the Dutch Government is sceptical about Mr Gachoka.
That’s why the Dutch Embassy in Nairobi has denied him a visa to The Hague.
Apparently, the ICC hasn’t accepted Mr Gachoka’s request for a meeting. You can read between the lines. The International Criminal Court most likely thinks Mr Gachoka is a “pest”.
That means he’s vexatious and an “instrument of confusion”. In other words, he’s being used as a pawn to delegitimise the court and its cases against the Ocampo Four.
Mr Gachoka should know that Dutch Embassy officials in Nairobi are keenly aware of plots to sabotage the court process. He should have been less transparent in his machinations.
I don’t know what sort of contact Mr Gachoka has made with the International Criminal Court, or the nature of the evidence he claims to possess. Nor do I know whether the court has responded to him. But I know this — the court is a savvy institution that knows a duck when it sees one.
The culpability of the Ocampo Four will not be established by implicating others. That’s not a sound legal strategy. The burden of proof lies with the prosecution to show — beyond a reasonable doubt — that the Ocampo Four are guilty as charged.
The defence is best advised to concentrate on tearing apart the prosecution’s case.
It will not help to introduce witnesses who can be easily impeached.
Why isn’t Mr Gachoka believable? First, he talks too much. He’s made too many public statements with which he can be impeached. He’s embittered against Mr Odinga. Like Mr Miguna, he was fired. Like Mr Miguna, he only wants to talk after the sack. That’s not a formula for credibility. He has an axe to grind.
Second, he really can’t explain why he’s held on to crucial evidence for a mind-boggling four years.
Possessing — and concealing — evidence could be a criminal offence. It also shows a lack of conscience. What does he tell the victims who cry for justice?
Can he ever look them in the eye and tell them why he’s sat on “crucial evidence” for four years?
For one, I don’t believe that Mr Gachoka has any evidence at all. He most likely has “stories” to tell, but no valuable evidence. He wants to set the court on a wild goose chase so that it can dissipate its resources and energy on “leads to nowhere”. It’s clear what the strategy is here – to divert attention from the Ocampo Four. This is how he and his “masters” plan to weaken the cases against the Ocampo Four. That’s why the ICC is unlikely to give him the time of day.
Even if the court relents and sees him, it would be out of courtesy, not seriousness. Nor would he see a high-ranking official. He’s an easy read.
Mr Gachoka is the latest cog in the PNU scheme to save the Ocampo Four. He’s no different from VP Kalonzo Musyoka’s “shuttle diplomacy” to sabotage the ICC at the African Union and the United Nations.
He’s a continuation of the challenges that the PNU wing of the coalition government lodged at the ICC. He’s picked up Mr Miguna’s boast that he can take Mr Odinga to the court.
But these are wild hallucinations. The court isn’t going to open new investigations into Kenya, or issue any more indictments. That’s done. Whether or not Mr Odinga and President Mwai Kibaki were complicit in the violence is now water under the bridge. The Ocampo Four should carry their own crosses.
I have some advice for the Ocampo Four and their supporters. The ICC, like all courts, has a psychology. Please study the court’s thinking, and its jurisprudence, otherwise you will continue to dig a deeper hole. The ICC is watching you carefully. Shenanigans by you or your supporters are very damaging. This can’t help with either the judges, or the ICC as an institution.
Don’t approach the ICC like a Kenyan court before CJ Willy Mutunga took over. 
You know the ICC recently convicted Congolese warlord Thomas Lubanga. You saw how the Special Court for Sierra Leone dealt with Liberian warlord Charles Taylor. We only want to know the truth – are you, or aren’t you – guilty as charged?
The court represents the one final forum for Kenyans to bury the trauma of the post-election violence so that we can move on. I don’t believe that justice for the victims will ever be done at home unless it’s first done at The Hague.
That’s why the trials of the Ocampo Four may be Kenya’s most important event since independence in 1964. I think the truth will come out at the trials of the Ocampo Four. We will know who planned and executed the mayhem. Let the truth set us free, Mr Gachoka.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.

Wednesday, August 15, 2012

What has been Eugene Wamalwa's role in the Coalition Government?

If you want to know the real enemies of Kenya’s reforms, look no further than the ever-smiling (but conniving and devious) Eugene Wamalwa. Ever since his public extolling by the President’s son (Jimmy Kibaki) and close association with Uhuru Kenyatta and William Ruto, this Mt. Kenya Mafia poodle has been exposed as one of the greatest enemies of Kenya’s reforms; in particular the new Constitution. The tricksters, led by propagandist Tony Gachoka, have been promoting this Uhuru Kenyatta side-kick as a viable future leader of Kenya.

In the short period he replaced Mutula Kilonzo as Justice and Constitutional Affairs Minister, Eugene Wamalwa will go down in history as having (based on a well researched audit report conducted by the Daily Nation – available in their digital edition of Tuesday 14 August 2012):

• Deleted 28 clauses from the CIC version of the Integrity Bill (as was contained in the CIC Bill, initially supported by Mutula Kilonzo)

• Paved way for people with questionable integrity or serious ongoing criminal cases to vie for top public positions (the Presidency, the Senate, Gubernatorial, Parliament and County Assemblies)

• Reversed strict Constitutional rules for vetting public officials

• Eliminated the constitutionally-guaranteed public participation during public appointments

• Removed the requirement for receipt of a “certificate of compliance” from the Ethics and Anti-Corruption Commission (EACC), NSIS, KRA (tax collector), National Police Service and Higher Education Loans Board for all seeking public office (as was contained in the CIC Bill, initially supported by Mutula Kilonzo).

• Mutilated the requirement for severe punishment for leaders failing the integrity test while in office (changing it from total disbarment for 10 years and jail time to a mere slap with a fine of KSh. 5 million)

• Completely deleted the requirement for wealth declaration (in public) for all leaders aspiring for public offices. We shall now not know the net worth of all candidates vying for the Presidency, unlike in modern democracies.

• Eliminated the requirement for the EACC to institute inquiries related to unexplained income while in public office, something the new Constitution is quite clear about.

• In a clear attempt to subvert cooperation with the ICC (on behalf of his paymaster Uhuru Kenyatta), Eugene Wamalwa has ridiculously introduced a clause that threatens public officials against cooperating with “foreign governments”. This, from Wamalwa’s team of drafters: “A State officer shall not further the interests of a foreign government, organization, or individual, in a manner that may be detrimental to the security interests of Kenya”. This cunning and vague clause with undefined parameters is obviously a trap meant to threaten public officials against dealing with any foreign entities including the ICC and foreign embassies.

• Removed the clause that would have barred (as required by the new Constitution) state and public officers to do business with their close relatives and friends using public funds. The original CIC Bill, taking cue from the new Constitution, specifically barred the use of government resources to award contracts to “State officer’s spouse, child, relative, friend, or any other person with direct or indirect pecuniary interest with the officer”. Wamalwa has lobbed this out on behalf of his Mt. Kenya Mafia paymasters! Uhuru Kenyatta obviously wants public funds to continue profiting his businesses at CMC motors (suppliers of VW Passats to Government), Commercial Bank of Africa (high-interest-rate domestic loans to Treasury) or holding expensive public seminars at his various resorts and hotels. The new Constitution was threatening this until ‘savior’ Eugene Wamalwa came to the rescue.

• Wamalwa has also exempted future Cabinet Secretaries (Ministers) and County Executive Committee members from the clause requiring all appointed State officers to be politically neutral. To fully appreciate the significance of this particular anti-reform mutilation, one only needs to look at the personal and political relationship between Eugene Wamalwa and one Tony Gachoka. Eugene has appointed Tony Gachoka to play dirty political games (on his and Uhuru’s behalf) targeting the Prime Minister Raila Odinga. Gachoka is an appointed Senior State Officer working in Wamalwa’s Ministry of Justice and paid close to 1 million shillings per month by Kenyan taxpayer. Gachoka has been hired by Uhuru and Wamalwa specifically to dig up KNCHR records from the Justice Ministry archives in desperate pursuit of the Prime Minister. That is the genesis of the brouhaha about Gachoka and his botched trip to The Hague. It’s all silly politics at the expense of the Kenyan taxpayer. Uhuru and Wamalwa want to retain this clause of allowing state officials to continue playing politics while in public office, so they can continue targeting political rivals in future. This is basically the vision of these anti-reform agents.

• Wamalwa’s extracurricular and anti-reform activities (on behalf of Kenyatta) have extended beyond this Leadership and Integrity Bill. He has also pounced on and watered-down at least 8 other Bills, including the Petition to Parliament Bill, the Petition to County Assemblies Bill, the Assumption of Office of the President Bill, the National Intelligence Service Bill, the National Security Service Bill, the National Security Council Bill and the Kenya Defence Forces Bill, and is currently in the process of mutilating the Campaign Financing Bill. From the above, it is clear that Wamalwa’s master, Uhuru Kenyatta, is seriously angling to control all security and legislative apparatuses of the country.

It’s as if Eugene Wamalwa is customising our brand new Constitution to fit the whims of one legally-besieged individual called Uhuru Kenyatta. Former Justice Minister Mutula Kilonzo would never have allowed such devious and ominous developments to proceed right under his nose – no wonder they kicked him out of this crucial Ministry.

To quote from the Daily Nation audit report, “Eugene Wamalwa has engineered the watering-down of the Leadership and  integrity Bill to an extent it won’t serve the purpose envisaged in Chapter Six of the Constitution.” The Commission on Implementation of the Constitution (CIC) has in fact protested against Wamalwa’s mutilation of the Katiba through these transition Bills.

I repeat for clarity, Eugene Wamalwa will go down in history as one of the first vultures hired to mutilate our brand new Constitution on behalf of the same retrogressive masters of impunity who have stifled for the last 50 years. Together with Attorney General Githu Muigai, Uhuru Kenyatta’s cousin, Wamalwa has probably inflicted the worst damage yet to the recently promulgated Constitution. The ethics and moral standards injected by the new Constitution have been dealt a serious blow.

Casual observers would have thought Eugene Wamalwa would do better than Mutula Kilonzo in terms of reforms. The plain truth, however, is Wamalwa has proved to be a hopeless anti-reform agent working for Uhuru Kenyatta. His appointment at the Justice and Constitutional Affairs Ministry was specifically planned to effect successful mutilation of the Constitution, most specifically the Leadership and Integrity Bill. Wamalwa has gone further, as if on steroids, having already mutilated 8 other reform anchoring Bills. He has been unmasked as one of the country's worst enemies.

Friday, August 10, 2012